Trial for accused 9/11 plotters likely still years from starting

Khalid Sheikh Mohammed speaks with lead defense lawyer David Nevin during a pretrial hearing at the Guantanamo Bay in Cuba, April 14, 2014. Photo/Sketch: AP/Janet Hamlin, Pool)

WASHINGTON — The military trial for five men accused of plotting the 9/11 terror attacks that killed thousands of Americans continues to be stalled at the Guantanamo Bay, Cuba, prison with no trial date in sight.

The five men accused of helping the 9/11 hijackers more than 16 years ago have been in U.S. custody for more than 10 years, and were arraigned in the latest iteration of their military commissions trial in 2012. The Obama administration wanted the men tried in federal court, but gave up after resistance from a vocal faction of 9/11 victims’ family members and members of Congress.

Since 2012, the defense and prosecution have been locked in a slow-as-molasses back and forth of pretrial motions, covering everything from the type of apparel the detainees can wear in court to whether the defense attorneys can access troves of classified government material detailing the torture some of the detainees faced while in CIA custody.

In July, the prosecution, led by Brig. Gen. Mark Martins, asked for jury selection to begin in January of 2019, and estimated the trial itself would only take two months.

But Judge James A. Pohl has already indicated that the prosecution’s timeline won’t work. Camp Justice, the military commissions complex, is double-booked for almost 40 days next year. Pohl is attempting to juggle pretrial proceedings in both the U.S.S. Cole bombing trial and the accused 9/11 attackers and has said he will not keep his courtroom open after dark.

Major Ben Sakrisson, a Defense Department spokesman, told Yahoo News the new 2019 trial date is just an estimate that the judge hasn’t ruled on yet.

Several experts have criticized the relatively untested military commissions system for the delay. (The Supreme Court struck down former President George W. Bush’s attempt to try the men in a military tribunal, which is different from the commissions.)

“In a regular U.S. court there are pretrial motions all the time that the judge just simply rules upon based on precedent,” said Ken Gude, a national security expert at the liberal-leaning Center for American Progress think tank. “But since there’s no precedent in this system, everything has to get litigated and it just will go on indefinitely.”

Others have blamed defense attorneys for providing what they see as too many pretrial motions, though the lawyers argue they are simply doing their job. The Defense Department provided no rationale for the delay.

“I’m not going to provide commentary on whose fault it is for the length of the pretrial motions,” Sarkrisson said. “They’re going through whatever motions either side feels necessary leading up to the actual trial itself. Obviously there’s a number of issues they have to cover, so I’m not going to lay blame on one side or the other.”

Another factor accounting for the delay is that the prison court is not in session very frequently. The prosecution pointed out that between Jan. 1 and July of 2017, there were only 35 days of proceedings in the crucial trial. One victim’s family member has died since then, and others “experienced continuing health challenges and often despair that they will not live to see justice done,” the prosecution said.

Defense attorneys are still combing through 13,346 pages of evidence about their clients’ treatment while in CIA custody. The lawyers do not have access to the original classified material but to court-approved substitutions detailing the material. Khalid Sheik Mohammed was waterboarded 183 times, according to the declassified Senate Intelligence Committee report on the CIA’s secret rendition and interrogation program, and other detainees were beaten, sleep deprived and fed rectally.

In the meantime, families of 9/11 victims wait for justice, even though some will never see it. “I don’t know if it’s going to happen in my lifetime,” Rita Lasar, 83, whose brother died in the 9/11 attacks, told Yahoo News in 2015. She died this January.